REHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 205/2022

[2024] HKCFI 3431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 205 of 2022

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Rehan (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 18 March 2022 (“2022 Board Decision”) when the Board affirmed the decisions of the Director of Immigration (“Director”) dated 27 September 2012 (“2012 DOI Decision”) and 31 August 2018 (“2018 DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Pakistani. He was born on 10 January 1983 in Sialkot, Pakistan. He received education up to class 9 and worked as a salesperson and an office boy in Pakistan.

3.  He came to Hong Kong in 2006. He married an Indonesian in Hong Kong in 2011 but had subsequently divorced.

The Claim

4.  The Applicant claimed to be a Christian who was born in a Christian family. In 2004, he worked as an office boy in a travel agency (“Agency”) operated by a wealthy Sunni Muslim (“AM”). AM and his family were extreme Muslim fundamentalists who often attended seminars organized by other extreme Muslim fundamentalists. AM and his family were well respected in the Muslim communities.

5.  AM asked the Applicant to convert to Islam but he refused. AM had a younger sister (“AI”) who was about the age of the Applicant. AI was studying at a college when the Applicant was working at the Agency. They started a romantic relationship in May 2005 for about 11 months.

6.  On a day in about July 2006, the Applicant was beaten at the office of the Agency by AM and AM’s men for 3 to 4 minutes until he managed to escape (“1^st Incident”). He suffered minor injuries and did not go to the hospital. On the same day, AI told the Applicant that her family knew of their relationship and that AI was three-month pregnant. She warned the Applicant that her family was planning to kill him and that he should run.

7.  The Applicant then went to stay with a friend. About 2 to 3 days after the 1^st Incident, the Applicant’s family told him that AM had called them and threatened to kill the Applicant. On or about 15 July 2006, the Applicant was attacked on the street by AM and 3 to 4 of his associates. They punched and kicked him and attacked him with weapons. The Applicant lost consciousness from the attack (“2^nd Incident”).

8.  The Applicant was hospitalized for two days. His head was swollen and he had bruises all over his body. When the police questioned him, he did not tell them the truth because AM was very powerful and influential and he did not think that the police would help him.

9.  The Applicant’s family tried to ask the help of a Catholic church in Sialkot in settling the matter with AM but the church said they could not help and advised the Applicant to flee the country. The Applicant fled to Lahore after being discharged from the hospital. He then moved to stay with his relatives in different places (including Gujianawala and Karachi) in August and September 2006.

10.  He claimed that all relatives he stayed with had received calls from AM whereby AM threatened to kill the entire family of that relative. The Applicant fled to Mainland China in September 2006 with the help of an agent and later sneaked into Hong Kong on 26 September 2006.

11.  The Applicant claimed that after coming to Hong Kong, his family told him that some men went to his home to look for him. He believed they were AM’s men.

12.  The Applicant claimed that he would be harmed or killed by AM or his men because he is a Christian and had impregnated AI if he were returned to Pakistan.

Procedural history

13.  The Applicant sneaked into Hong Kong on 26 September 2006. He was arrested on 29 November 2006. He lodged a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”) on 2 December 2006. His CAT Claim was dismissed by the Director’s decision dated 27 September 2012 (i.e. the 2012 DOI Decision).

14.  The Applicant appealed against the 2012 Decision to the Board (“2012 Appeal”) which was dismissed by the Board on 2 November 2012 (“2012 Board Decision”). The Applicant applied for leave for judicial review against the 2012 Board Decision. Leave was granted for the Applicant to apply for judicial review against the 2012 Board Decision. The parties subsequently agreed to quash the 2012 Board Decision and remit the 2012 Appeal to the Board for re-determination. On 17 October 2013, the court granted an order giving effect to the aforesaid agreement of the parties.

15.  By a written representation of 7 February 2013, the Applicant lodged his non-refoulement claim (“NFC”). The CAT Claim and the NFC are referred to together as the Claim.

16.  The Director had considered the NFC on the remaining applicable grounds (other than the CAT Claim) under the United Screening Mechanism (“USM”), namely:

(a)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(c)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

17.  By the 2018 DOI Decision, the Director refused the NFC. The Applicant later filed an appeal/petition to the Board (“2018 Appeal”). By the 2022 Board Decision, the Board affirmed the 2012 DOI Decision and the 2018 DOI Decision. The Board rejected and dismissed both the 2012 Appeal and the 2018 Appeal.

18.  On 13 April 2022, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the 2012 DOI Decision, the 2018 DOI Decision and the 2022 Board Decision. The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Director and the Board as the proposed respondents and interested parties.

19.  On 22 July 2024, the Applicant filed another affidavit applying to withdraw this intended judicial review application (“Withdrawal Application”).

The 2012 DOI Decision

20.  In dealing with the CAT Claim, the Director required the Applicant to complete a questionnaire (“Questionnaire”). The Applicant failed to submit the completed Questionnaire to the Director despite repeated reminders.

21.  The Director proceeded to assess the CAT Claim based on information available to the Director.

22.  The Director was of the view that although the Applicant claimed that he had incurred problems and his life was at risk in Pakistan, the information provided by the Applicant to the Director did not reveal that he was subjected to any torture or act of violence, whether of physical or mental nature, within the meaning of torture.

23.  Despite his claimed fear that his life was in danger in Pakistan, such fear did not necessarily relate to involvement from the State or public official and there was no evidence that the Applicant was subjected to any threat of torture initiated or agreed to by any public official or other person acting in an official capacity in Pakistan.

24.  After considering the relevant country of origin information (“COI”), the Director was of the further view that the Pakistani government had determination to enhance the religious freedom in Pakistan and there was no indication that the Pakistani authority would fail to discharge its duties or tolerate any unlawful and abusive behaviour committed by an individual as a systemic practice. Thus, reasonable state protection was available to the Applicant.

25.  The Director found that the Applicant had failed to establish that there were substantial grounds for believing that he would be subjected to torture in Pakistan if he were to return there.

26.  By reasons stated in the 2012 DOI Decision, the Director rejected the CAT Claim.

The 2018 DOI Decision

27.  The Director noted that the low intensity and low frequency of pass ill-treatment from AM was indicative of a small future risk of harm upon the Applicant’s return. Further, the injuries he suffered from AM were not serious and the alleged risk he faced did not attain a minimum level of severity.

28.  The Applicant’s family had been living in their hometown safely in the past. There was nothing to show that the level of risk of harm from the Muslims people upon the Applicant’s return to Pakistan was as imminent as he perceived.

29.  On the issue of state protection, after considering the COI, the Director found that reasonable state protection would be available to the Applicant upon his return. The Applicant obtained his passport without problem and he departed Pakistan using his own passport without any hindrance. There was nothing to show that the Pakistani authorities had any adverse interest on him.

30.  The Director further found that internal relocation would be viable. If the Applicant moved to Lahore, AM would have great difficulty in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate to Lahore and lead a normal life.

31.  For the reasons set out in the 2018 DOI Decision, the Director rejected the NFC.

The 2022 Board Decision

32.  The Board was of the view that the Applicant was not a witness of truth. In §§75-95 of the 2022 Board Decision, the Board set out its analysis on the Applicant’s credibility and the reasons for its findings.

33.  The Board found the Applicant to be an utterly untrustworthy witness upon whose evidence no reliance could be placed. The Applicant’s account of his alleged relationship with AI was itself implausible.

34.  The Board was satisfied that the Applicant was prepared to fabricate an account to support his claim for protection and no weight could be attached to the documents produced by him in evidence as they were either made or produced by the Applicant to support his false claim.

35.  The Board found that the Applicant had not established, even to the low standard required, that there was any truth in his story that he had an affair with AI, making her pregnant or that he faced any danger if he were returned to Pakistan.

36.  The Board had gone on to consider whether the Applicant’s Christian background on its own would entitle him to non-refoulement protection. After considering the relevant COI, the Board was not satisfied that the Applicant had shown any increased risk to Christian in Pakistan or that there were factors peculiar to the Applicant which placed him at particular risk.

37.  The Board further found that even if it accepted the Applicant’s evidence as truthful, his claim for protection would nonetheless fail. This was because the harm he received from AM was not particularly serious and the threat from AM was limited to his home area in Sialkot. The Board was satisfied that state protection would be available to him and internal relocation to Lahore, Faisalabad or Karachi would be viable.

38.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the 2012 and 2018 DOI Decisions and dismissed the 2012 and 2018 Appeals.

Legal principles applicable to judicial review

39.  In a judicial review, the court does not step into the shoes of the decision makers.

40.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

41.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

42.  The Applicant did not advance any grounds for his intended judicial review in the Form 86 or the Supporting Affidavit. He only produced the Board’s Decision, his closing submissions and list of authorities for the hearing before the Board as exhibits to the Supporting Affidavit without other supporting documents.

43.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the 2022 Board Decision in affirming the 2012 and 2018 DOI Decisions, or in what way was the 2022 Board Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

44.  Having rigorously examined the 2022 Board Decision, the 2012 DOI Decision and the 2018 DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

45.  The Board found that the Applicant was an utterly untrustworthy witness upon whose evidence no reliance could be placed. Thus, he failed to show that if he returned to Pakistan, he would be in danger of being subject to the proscribed risks, including risk to his right to life.

46.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the 2022 Board Decision or procedural unfairness at any stage of the non-refoulement proceedings. The 2022 Board Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

47.  The Applicant subsequently filed the Withdrawal Application on 22 July 2024 stating that he wanted to withdraw his judicial review application.

48.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

49.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

50.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

51.  In the premise and having considered the 2022 Board Decision, the 2012 DOI Decision and the 2018 DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1